IN RE: Tyrone HILL (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the determination is unanimously annulled on the law without costs, the petition is granted, and respondent is directed to expunge all references to this matter from petitioner's school record.

Memorandum:  Petitioner, an undergraduate student at respondent State University of New York at Buffalo, commenced the instant CPLR article 78 proceeding to annul respondent's determination that he possessed weapons and engaged in harassment.  Respondent sanctioned petitioner with 50 hours of community service, two years of disciplinary probation, and exclusion from on-campus housing.  We agree with petitioner that the record is devoid of any evidence, much less substantial evidence, to support respondent's determination (see generally Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 498–499, 922 N.Y.S.2d 249, 947 N.E.2d 140 [2011];  Matter of West v. State Univ. of N.Y. at Buffalo, Off. of Vice President for Student Affairs, 159 A.D.3d 1486, 1487, 72 N.Y.S.3d 314 [4th Dept. 2018] ).  Instead, respondent's determination rests exclusively on a “seriously controverted” hearsay statement, and that does not, as a matter of law, constitute substantial evidence (Matter of McGillicuddy's Tap House, Ltd. v. New York State Liq. Auth., 57 A.D.3d 1052, 1053, 868 N.Y.S.2d 383 [3d Dept. 2008] ).  We therefore annul the determination, grant the petition, and direct respondent to expunge all references to this matter from petitioner's school record (see West, 159 A.D.3d at 1487, 72 N.Y.S.3d 314;  Matter of Nawaz v. State Univ. of N.Y. Univ. at Buffalo School of Dental Medicine, 296 A.D.2d 863, 863, 744 N.Y.S.2d 623 [4th Dept. 2002] ).

We decline respondent's invitation to remit this matter for a new hearing in light of its failure to transcribe the disciplinary hearing.  Annulment and expungement is the prescribed remedy for an administrative determination that is unsupported by substantial evidence (see Matter of Barnes v. Fischer, 108 A.D.3d 990, 990, 968 N.Y.S.2d 916 [3d Dept. 2013], lv denied 22 N.Y.3d 855, 2013 WL 6065925 [2013] ), and it would be anomalous if respondent was afforded a new opportunity to establish petitioner's culpability based on its own procedural error in failing to transcribe the initial hearing.

Finally, we are compelled to express our dismay at respondent's cavalier attitude toward petitioner's due process rights in this case, and we remind respondent—and all other colleges and universities, particularly state-affiliated institutions—of their unwavering obligation to conduct student disciplinary proceedings in a manner that comports with fundamental notions of due process for the accused, that renders determinations consistent with the facts, and that respects the presumption of innocence to which all students are entitled.